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OFFICIAL DOCUMENTS
THE SOUTH AFRICA ACT, 1909.
[9 Bdw. 7. Ch. 9.]
"Whereas it is desirable for the welfare and future progress of South
Africa that the several British colonies therein should be united under
one government in a legislative union under the crown of Great Britain
and Ireland:
And whereas it is expedient to make provision for the union of the
Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange
Biver Colony on terms and conditions to which they have agreed by
resolution of their respective Parliaments, and to define the executive,
legislative, and judicial powers to be exercised in the government of the
Union :
And whereas it is expedient to make provision for the establishment
of provinces with powers of legislation and administration in local matters
and in such other matters as may be specially reserved for provincial
legislation and administration:
And whereas it is expedient to provide for the eventual admission into
the Union or transfer to the Union of such parts of South Africa as are
not originally included therein :
Be it therefore enacted by the king's most excellent majesty, by and
with the advice and consent of the lords spiritual and temporal, and
commons, in this present Parliament assembled, and by the authority of
the same, as follows:
I. Preliminary.
1. This act may be cited as the South Africa Act, 1909.
2. In this act, unless it is otherwise expressed or implied, the words
" the Union " shall be taken to mean the Union of South Africa as con-
stituted under this act, and the words " Houses of Parliament," " House
of Parliament," or " Parliament," shall be taken to mean the Parliament
of the Union.
3. The provisions of this act referring to the king shall extend to his
majesty's heirs and successors in the sovereignty of the United Kingdom
of Great Britain and Ireland.
25 THE AMERICAN JOURNAL OF INTER NATIONAL LAW
II. The Union.
4. It shall be lawful for the king, with the advice of the privy council,
to declare by proclamation that, on and after a day therein appointed,
not being later than one year after the passing of this act, the colonies
of the Cape of Good Hope, Natal, the Transvaal, and the Orange Eiver
Colony, hereinafter called the colonies, shall be united in a legislative
union under one government under the name of the Union of South
Africa. On and after the day appointed by such proclamation the gov-
ernment and parliament of the Union shall have full power and au-
thority within the limits of the colonies, but the king may at any time
after the proclamation appoint a governor-general for the Union.
5. The provisions of this act shall, unless it is otherwise expressed or
implied, take effect on and after the day so appointed.
6. The colonies mentioned in section four shall become original prov-
inces of the Union under the names of Cape of Good Hope, Natal,
Transvaal, and Orange Free State, as the case may be. The original
provinces shall have the same limits as the respective colonies at the
establishment of the Union.
7. Upon any colony entering the Union, the Colonial Boundaries Act,
1895, and every other act applying to any of the colonies as being self-
governing colonies or colonies with responsible government, shall cease
to apply to that colony, but as from the date when this act takes effect
every such act of parliament shall apply to the Union.
III. Executive Government.
8. The executive government of the Union is vested in the king, and
shall be administered by his majesty in person or by a governor-general
as his representative.
9. The governor-general shall be appointed by the king, and shall have
and may exercise in the Union during the king's pleasure, but subject
to this act, such powers and functions of the king as his majesty may be
pleased to assign to him.
10. There shall be payable to the king out of the consolidated revenue
fund of the Union for the salary of the governor-general an annual sum
of ten thousand pounds. The salary of the governor-general shall not be
altered during his continuance in office.
11. The provisions of this act relating to the governor-general extend
and apply to the governor-general for the time being or such person as
OFFICIAL DOCUMENTS 6
the king may appoint to administer the government of the Union. The
king may authorize the governor-general to appoint any person to be his
deputy within the Union during his temporary absence, and in that
capacity to exercise for and on behalf of the governor-general during
such absence all such powers and authorities vested in the governor -
general as the governor-general may assign to him, subject to any limita-
tions expressed or directions given by the king, but the appointment of
such deputy shall not affect the exercise by the governor-general himself
of any power or function.
12. There shall be an executive council to advise the governor-general
in the government of the Union and the members of the council shall be
chosen and summoned by the governor-general and sworn as executive
councillors, and shall hold office during his pleasure.
13. The provisions of this act referring to the governor-general in
council shall be construed as referring to the governor-general acting
with the advice of the executive council.
14. The governor-general may appoint officers not exceeding ten in
number to administer such departments of state of the Union as the
governor-general in council may establish; such officers shall hold office
during the pleasure of the governor-general. They shall be members
of the executive council and shall be the king's ministers of state for the
Union. After the first general election of members of the house of
assembly, as hereinafter provided, no minister shall hold office for a
longer period than three months unless he is or becomes a member of
either house of parliament.
15. The appointment and removal of all officers of the public service
of the Union shall be vested in the governor-general in council, unless
the appointment is delegated by the governor-general in council or by
this act or by a law of parliament to some other authority.
16. All powers, authorities, and functions which at the establishment
of the Union are in any of the colonies vested in the governor or in the
governor in council, or in any authority of the colony, shall as far as the
same continue in existence and are capable of being exercised after the
establishment of the Union, be vested in the governor-general or in the
governor-general in council, or in the authority exercising similar powers
under the Union, as the case may be, except such powers and functions
as are by this act or may by a law of parliament be vested in some other
authority.
17. The command in chief of the naval and militarv forces within
4 THE AMERICAN JOURNAL OP INTER NATIONAL LAW
the Union is vested in the king or in the governor-general as his repre-
sentative.
18. Save as in section twenty-three excepted, Pretoria shall be the seat
of government of the Union.
IV. Parliament.
19. The legislative power of the Union shall be vested in the parlia-
ment of the Union, herein called parliament, which shall consist of the
king, a senate, and a house of assembly.
20. The governor-general may appoint such times for holding the
sessions of parliament as he thinks fit, and may also from time to time, by
proclamation or otherwise, prorogue parliament, and may in like manner
dissolve the senate and the house of assembly simultaneously, or the house
of assembly alone: provided that the senate shall not be dissolved within
a period of ten years after the establishment of the Union, and provided
further that the dissolution of the senate shall not affect any senators
nominated by the governor-general in council.
21. Parliament shall be summoned to meet not later than six months
after the establishment of the Union.
22. There shall be a session of parliament once at least in every year,
so that a period of twelve months shall not intervene between the last
sitting of parliament in one session and its first sitting in the next
session.
23. Cape Town shall be the seat of the legislature of the Union.
Senate.
24. For ten years after the establishment of the Union the constitution
of the senate shall, in respect of the original provinces, be as follows : —
(i) Eight senators shall be nominated by the governor-general
in council, and for each original province eight senators shall be
elected in the manner hereinafter provided :
(ii) The senators to be nominated by the governor-general in
council shall hold their seats for ten years. One-half of their num-
ber shall be selected on the ground mainly of their thorough ac-
quaintance, by reason of their official experience or otherwise, with
the reasonable wants and wishes of the colored races in South Africa.
If the seat of a senator so nominated shall become vacant, the gover-
nor-general in council shall nominate another person to be a senator,
who shall hold his seat for ten years.
OFFICIAL DOCUMENTS 5
(iii) After the passing of this suet, and before the day appointed
for the establishment of the Union, the governor of each of the
colonies shall summon a special sitting of both houses of the legisla-
ture, and the two houses sitting together as one body and presided
over by the speaker of the legislative assembly shall elect eight per-
sons to be senators for the province. Such senators shall hold their
seats for ten years. If the seat of a senator so elected shall become
vacant, the provincial council of the province for which such senator
has been elected shall choose a person to hold the seat until the com-
pletion of the period for which the person in whose stead he is
elected would have held his seat.
25. Parliament may provide for the manner in which the senate shall
be constituted after the expiration of ten years, and unless and until such
provision shall have been made —
(i) the provisions of the last preceding section with regard to
nominated senators shall continue to have effect;
(ii) eight senators for each province shall be elected by the mem-
bers of the provincial council of such province together with the
members of the house of assembly elected for such province. Such
senators shall hold their seats for ten years unless the senate be
sooner dissolved. If the seat of an elected senator shall become
vacant, the members of the provincial council of the province, to-
gether with the members of the house of assembly elected for such
province, shall choose a person to hold the seat until the completion
of the period for which the person in whose stead he is elected would
have held his seat. The governor-general in council shall make
regulations for the joint election of senators prescribed in this
section.
26. The qualifications of a senator shall be as follows: —
He must — •
(a) be not less than thirty years of age ;
(b) be qualified to be registered as a voter for the election of
members of the house of assembly in one of the provinces;
(c) have resided for five years within the limits of the Union as
existing at the time when he is elected or nominated, as the case
may be;
(d) be a British subject of European descent;
(e) in the case of an elected senator, be the registered owner of
immovable property within the Union of the value of not less than
five hundred pounds over and above any special mortgages thereon.
b THE AMERICAN JOURNAL OF INTER NATIONAL LAW
For the purposes of this section, residence in, and property situated
within, a colony before its incorporation in the Union shall be treated as
residence in and property situated within the Union.
27. The senate shall, before proceeding to the dispatch of any other
business, choose a senator to be the president of the senate, and as often
as the office of president becomes vacant the senate shall again choose a
senator to be the president. The president shall cease to hold office if he
ceases to be a senator. He may be removed from office by a vote of the
senate, or he may resign his office by writing under his hand addressed
to the governor-general.
28. Prior to or during any absence of the president the senate may
choose a senator to perform his duties in his absence.
29. A senator may, by writing under his hand addressed to the gover-
nor-general, resign his seat, which thereupon shall become vacant. The
governor-general shall as soon as practicable cause steps to be taken to
have the vacancy filled.
30. The presence of at least twelve senators shall be necessary to con-
stitute a meeting of the senate for the exercise of its powers.
31. All questions in the senate shall be determined by a majority of
votes of senators present other than the president or the presiding senator,
who shall, however, have and exercise a casting vote in the case of an
equality of votes.
House of assembly.
32. The house of assembly shall be composed of members directly
chosen by the voters of the Union in electoral divisions delimited as
hereinafter provided.
33. The number of members to be elected in the original provinces at
the first election and until the number is altered in accordance with the
provisions of this act shall be as follows :
Cape of Good Hope fifty-one.
Natal seventeen.
Transvaal thirty-six.
Orange Free State seventeen.
These numbers may be increased as provided in the next succeeding
section, but shall not, in the case of any original province, be diminished
until the total number of members of the house of assembly in respect
of the provinces herein provided for reaches one hundred and fifty, or
until a period of ten years has elapsed after the establishment of the
Union, whichever is the longer period.
OFFICIAL DOCUMENTS 7
34. The number of members to be elected in each province, as provided
in section thirty-three, shall be increased from time to time as may be
necessary in accordance with the following provisions :
(i)The quota of the Union shall be obtained by dividing the total
number of European male adults in the Union, as ascertained at
the census of 1904, by the total number of members of the house of
assembly as constituted at the establishment of the Union :
(ii) In nineteen hundred and eleven, and every five years there-
after, a census of the European population of the Union shall be
taken for the purposes of this act :
(iii) After any such census the number of European male adults
in each province shall be compared with the number of European
male adults as ascertained at the census of 1904, and, in the case of
any province where an increase is shown, as compared with the
census of 1904, equal to the quota of the Union or any multiple
thereof, the number of members allotted to such province in the last
preceding section shall be increased by an additional member or an
additional number of members equal to such multiple, as the case
may be:
(iv) Notwithstanding anything herein contained, no additional
member shall be allotted to any province until the total number of
European male adults in such province exceeds the quota of the
Union multiplied by the number of members allotted to such prov-
ince for the time being, and thereupon additional members shall be
allotted to such province in respect only of such excess :
(v) As soon as the number of members of the house of assembly
to be elected in the original provinces in accordance with the pre-
ceding sub-sections reaches the total of one hundred and fifty, such
total shall not be further increased unless and until parliament
otherwise provides ; and subject to the provisions of the last preced-
ing section the distribution of members among the provinces shall
be such that the proportion between the number of members to be
elected at any time in each province and the number of European
male adults in such province, as ascertained at the last preceding
census, shall as far as possible be identical throughout the union :
(vi) "Male adults" in this act shall be taken to mean males of
twenty-one years of age or upwards not being members of his
majesty's regular forces on full pay :
(vii) For the purposes of this act the number of European male
adults, as ascertained at the census of 1904, shall be taken to be
8 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
for the Cape of Good Hope 167,546
for Natal 34,784
for the Transvaal 106,493
for the Orange Free State 41,014
35. (1) Parliament may by law prescribe the qualifications which
shall be necessary to entitle persons to vote at the election of members
of the house of assembly, but no such law shall disqualify any person in
the province of the Cape of Good Hope who, under the laws existing in
the colony of the Cape of Good Hope at the establishment of the Union,
is or may become capable of being registered as a voter from being so
registered in the province of the Cape of Good Hope by reason of his
race or color only, unless the bill be passed by both houses of parliament
sitting together, and at the third reading be agreed to by not less than
two-thirds of the total number of members of both houses. A bill so
passed at such joint sitting shall be taken to have been duly passed by
both houses of parliament.
(2) No person who at the passing of any such law is registered as a
voter in any province shall be removed from the register by reason only
of any disqualification based on race or color.
36. Subject to the provisions of the last preceding section, the qualifica-
tions of parliamentary voters, as existing in the several colonies at the
establishment of the Union, shall be the qualifications necessary to entitle
persons in the corresponding provinces to vote for the election of mem-
bers of the house of assembly : provided that no member of his majesty's
regular forces on full pay shall be entitled to be registered as a voter.
37. (1) Subject to the provisions of this act, the laws in force in the
colonies at the establishment of the Union relating to elections for the
more numerous houses of parliament in such colonies respectively, the
registration of voters, the oaths or declarations to be taken by voters,
returning officers, the powers and duties of such officers, the proceedings
in connection with elections, election expenses, corrupt and illegal prac-
tices, the hearing of election petitions and the proceedings incident
thereto, the vacating of seats of members, and the proceedings necessary
for filling such vacancies, shall, mutatis mutandis, apply to the elections
in the respective provinces of members of the house of assembly.
(2) Notwithstanding anything to the contrary in any of the said laws
contained, at any general election of members of the house of assembly,
all polls shall be taken on one and the same day in all the electoral
divisions throughout the Union, such day to be appointed by the gover-
nor-general in council.
OFFICIAL DOCUMENTS 9
38. Between the date of the passing of this act and the date fixed for
the establishment of the Union, the governor in council of each of the
colonies shall nominate a judge of any of the supreme or high courts of
the colonies, and the judges so nominated shall, upon acceptance by them
respectively of such nomination, form a joint commission, without any
further appointment, for the purpose of the first division of the provinces
into electoral divisions. The high commissioner for South Africa shall
forthwith convene a meeting of such commission at such time and place
in one of the colonies as he shall fix and determine. At such meeting
the commissioners shall elect one of their number as chairman of such
commission. They shall thereupon proceed with the discharge of their
duties under this act, and may appoint persons in any province to assist
them or to act as assessors to the commission or with individual mem-
bers thereof for the purpose of inquiring into matters connected with
the duties of the commission. The commission may regulate their own
procedure and may act by a majority of their number. All moneys re-
quired for the payment of the expenses of such commission before the
establishment of the Union in any of the colonies shall be provided by
the governor in council of such colony. In case of the death, resigna-
tion, or other disability of any of the commissioners before the establish-
ment of the Union, the governor in council of the colony in respect of
which he was nominated shall forthwith nominate another judge to fill
the vacancy. After the establishment of the Union the expenses of the
commission shall be defrayed by the governor-general in council, and any
vacancies shall be filled by him.
39. The commission shall divide each province into electoral divisions,
each returning one member.
40. (1) For the purpose of such division as is in the last preceding
section mentioned, the quota of each province shall be obtained by divid-
ing the total number of voters in the province, as ascertained at the last
registration of voters, by the number of members of the house of assembly
to be elected therein.
(2) Each province shall be divided into electoral divisions in such a
manner that each such division shall, subject to the provisions of sub-
section (3) of this section, contain a number of voters, as nearly as may
be, equal to the quota of the province.
(3) The commissioners shall give due consideration to
(a) community or diversity of interests;
(b) means of communication;
(c) physical features;
10 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
(d) existing electoral boundaries;
(e) sparsity or density of population;
in such manner that, while taking the quota of voters as the basis of
division, the commissioners may, whenever they deem it necessary, depart
therefrom, but in no case to any greater extent than fifteen per centum
more or fifteen per centum less than the quota.
41. As soon as may be after every quinquennial census, the governor-
general in council shall appoint a commission consisting of three judges
of the supreme court of South Africa to carry out any redivision which
may have become necessary as between the different electoral divisions in
each province, and to provide for the allocation of the number of mem-
bers to which such province may have become entitled under the pro-
visions of this act. In carrying out such redivision and allocation the
commission shall have the same powers and proceed upon the same prin-
ciples as are by this act provided in regard to the original division.
42. (1) The joint commission constituted under section thirty-eight
and any subsequent commission appointed under the provisions of the
last preceding section, shall submit to the governor-general in council :
(a) a list of electoral divisions, with the names given to them by
the commission and a description of the boundaries of every such
division :
(b) a map or maps showing the electoral divisions into which the
provinces have been divided :
(c) such further particulars as they consider necessary.
(2) The governor-general in council may refer to the commission for
its consideration any matter relating to such list or arising out of the
powers or duties of the commission.
(3) The governor-general in council shall proclaim the names and
boundaries of the electoral divisions as finally settled and certified by the
commission, or a majority thereof, and thereafter, until there shall be a
redivision, the electoral divisions as named and defined shall be the
electoral divisions of the Union in the provinces.
(4) If any discrepancy shall arise between the description of the
divisions and the aforesaid map or maps, the description shall prevail.
43. Any alteration in the number of members of the house of assembly
to be elected in the several provinces, and any redivision of the provinces
into electoral divisions, shall, in respect of the election of members of the
bouse of assembly, come into operation at the next general election held
after the completion of the redivision or of any allocation consequent
upon such alteration, and not earlier.
OFFICIAL DOCUMENTS
11
44. The qualifications of a member of the house of assembly shall be
as follows :
He must —
(a) be qualified to be registered as a voter for the election of
members of the house of assembly in one of the provinces;
(b) have resided for five years within the limits of the Union as
existing at the time when he is elected;
(c) be a British subject of European descent.
For the purposes of this section, residence in a colony before its in-
corporation in the Union shall be treated as residence in the Union.
45. Every house of assembly shall continue for five years from the first
meeting thereof, and no longer, but may be sooner dissolved by the
governor-general.
46. The house of assembly shall, before proceeding to the despatch of
any other business, choose a member to be the speaker of the house, and,
as often as the office of speaker becomes vacant, the house shall again
choose a member to be the speaker. The speaker shall cease to hold his
office if he ceases to be a member. He may be removed from office by a
vote of the house, or he may resign his office or his seat by writing under
his hand addressed to the governor-general.
47. Prior to or during the absence of the speaker, the house of assembly
may choose a member to perform his duties in his absence.
48. A member may, by writing under his hand addressed to the
speaker, or, if there is no speaker, or if the speaker is absent from the
Union, to the governor-general, resign his seat, which shall thereupon
become vacant.
49. The presence of at least thirty members of the house of assembly
shall be necessary to constitute a meeting of the house for the exercise
of its powers.
50. All questions in the house of assembly shall be determined by a
majority of votes of members present other than the speaker or the pre-
siding member, who shall, however, have and exercise a casting vote in
the case of an equality of votes.
Both houses of parliament.
51. Every senator and every member of the house of assembly shall,
before taking his seat, make and subscribe before the governor-general, or
some person authorized by him, an oath or affirmation of allegiance in the
following form:
12 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
Oath.
I, A. B., do swear that I will be faithful and bear true allegiance to
His Majesty [here insert the name of the king or queen of the United
Kingdom of Great Britain and Ireland for the time being] his [or her]
heirs and successors according to law. So help me God.
Affirmation.
I, A. B., do solemnly and sincerely affirm and declare that I will be
faithful and bear true allegiance to His Majesty [here insert the name
of the king or queen of the United Kingdom of Great Britain and Ire-
land for the time being] his [or her] heirs and successors according to
law.
52. A member of either house of parliament shall be incapable of being
chosen or of sitting as a member of the other house : provided that every
minister of state who is a member of either house of parliament shall
have the right to sit and speak in the senate and the house of assembly,
but shall vote only in the house of which he is a member.
53. No person shall be capable of being chosen or of sitting as a
senator or as a member of the house of assembly who :
(a) has been at any time convicted of any crime or offense for
which he shall have been sentenced to imprisonment without the
option of a fine for a term of not less than twelve months, unless he
shall have received a grant of amnesty or a free pardon, or unless
such imprisonment shall have expired at least five years before the
date of his election ; or
(b) is an unrehabilitated insolvent; or
(c) is of unsound mind, and has been so declared by a competent
court; or
(d) holds any office of profit under the crown within the Union:
provided that the following persons shall not be deemed to hold an
office of profit under the crown for the purposes of this sub-section :
(1) a minister of state for the Union;
(2) a person in receipt of a pension from the crown;
(3) an officer or member of his majesty's naval or military
forces on retired or half pay, or an officer or member of the naval
or military forces of the Union whose services are not wholly em-
ployed by the Union.
54. If a senator or member of the houses of assembly —
OFFICIAL DOCUMENTS 13
(a) becomes subject to any of the disabilities mentioned in the
last preceding section; or
(b) ceases to be qualified as required by law; or
(e) fails for a whole ordinary session to attend without the
special leave of the senate or the house cf assembly, as the case may
be;
his seat shall thereupon become vacant.
55. If any person who is by law incapable of sitting as a senator or
member of the house of assembly shall, while so disqualified and knowing
or having reasonable grounds for knowing that he is so disqualified, sit or
vote as a member of the senate or the house of assembly, he shall be
liable to a penalty of one hundred pounds for each day on which he shall
so sit or vote, to be recovered on behalf of the treasury of the Union by
action in any superior court of the Union.
56. Each senator and each member of the house of assembly shall,
under such rules as shall be framed by parliament, receive an allowance
of four hundred pounds a year, to be reckoned from the date on which he
takes his seat : provided that for every day of the session on which he is
absent there shall be deducted from such allowance the sum of three
pounds: provided further that no such allowance shall be paid to a
minister receiving a salary under the crown or to the president of the
senate or the speaker of the house of assembly. A day of the session shall
mean in respect of a member any day during a session on which the
house of which he is a member or any committee of which he is a member
meets.
57. The powers, privileges, and immunities of the senate and of the
house of assembly and of the members and committees of each house
shall, subject to the provisions of this act, be such as are declared by par-
liament, and until declared shall be those of the house of assembly of the
Cape of Good Hope and of its members and committees at the establish-
ment of the Union.
58. Each house of parliament may make rules and orders with respect
to the order and conduct of its business and proceedings. Until such
rules and orders shall have been made the rules and orders of the legisla-
tive council and house of assembly of the Cape of Good Hope at the
establishment of the Union shall mutatis mutandis apply to the senate
and house of assembly respectively. If a joint sitting of both houses of
parliament is required under the provisions of this act, it shall be con-
vened by the governor-general by message to both houses. At any such
14 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
joint sitting the speaker of the house of assembly shall preside and the
rules of the house of assembly shall, as far as practicable, apply.
Powers of parliament.
59. Parliament shall have full power to make laws for the peace, order,
and good government of the Union.
60. (1) Bills appropriating revenue or moneys or imposing taxation
shall originate only in the house of assembly. But a bill shall not be
taken to appropriate revenue or moneys or to impose taxation by reason
only of its containing provisions for the imposition or appropriation of
fines or other pecuniary penalties.
(2) The senate may not amend any bills so far as they impose taxation
or appropriate revenue or moneys for the services of the government.
(3) The senate may not amend any bill so as to increase any proposed
charges or burden on the people.
61. Any bill which appropriates revenue or moneys for the ordinary
annual services of the government shall deal only with such appropria-
tion.
62. The house of assembly shall not originate or pass any vote, resolu-
tion, address, or bill for the appropriation of any part of the public
revenue or of any tax or impost to any purpose unless such appropriation
has been recommended by message from the governor-general during the
session in which such vote, resolution, address, or bill is proposed.
63. If the house of assembly passes any bill and the senate rejects or
fails to pass it or passes it with amendments to which the house of
asesmbly will not agree, and if the house of assembly in the next session
again passes the bill with or without any amendments which have been
made or agreed to by the senate and the senate rejects or fails to pass it
or passes it with amendments to which the house of assembly will not
agree, the governor-general may during that session convene a joint
sitting of the members of the senate and house of assembly. The mem-
bers present at any such joint sitting may deliberate and shall vote
together upon the bill as last proposed by the house of assembly and
upon amendments, if any, which have been made therein by one house
of parliament and not agreed to by the other ; and any such amendments
which are affirmed by a majority of the total number of members of the
senate and house of assembly present at such sitting shall be taken to
have been carried, and if the bill with the amendments, if any, is affirmed
by a majority of the members of the senate and house of assembly present
OFFICIAL DOCUMENTS 15
at such sitting, it shall be taken to have been duly passed by both houses
of parliament: provided that, if the senate shall reject or fail to pass
any bill dealing with the appropriation of revenue or moneys for the
public service, such joint sitting may be convened during the same session
in which the senate so rejects or fails to pass such bill.
64. When a bill is presented to the governor-general for the king's
assent, he shall declare according to his discretion, but subject to the
provisions of this act, and to such instructions as may from time to time
be given in that behalf by the king, that he assents in the king's name,
or that he withholds assent, or that he reserves the bill for the significa-
tion of the king's pleasure. All bills repealing or amending this section
or any of the provisions of chapter IV., under the heading " house of
asembly," and all bills abolishing provincial councils or abridging the
powers conferred on provincial councils under section eighty-five, other-
wise than in accordance with the provisions of that section, shall be so
reserved. The governor-general may return to the house in which it
originated any bill so presented to him, and may transmit therewith any
amendments which he may recommend, and the house may deal with the
recommendation.
65. The king may disallow any law within one year after it has been
assented to by the governor-general, and such disallowance, on being made
known by the governor-general by speech or message to each of the houses
of parliament or by proclamation shall annul the law from the day when
the disallowance is so made known.
66. A bill reserved for the king's pleasure shall not have any force
unless and until, within one year from the day on which it was presented
to the governor-general for the king's assent, the governor-general makes
known by speech or message to each of the houses of parliament or by
proclamation that it has received the king's assent.
67. As soon as may be after any law shall have been assented to in the
king's name by the governor-general, or having been reserved for the
king's pleasure shall have received his assent, the clerk of the house of
assembly shall cause two fair copies of such law, one being in the English
and the other in the Dutch language (one of which copies shall be signed
by the governor-general), to be enrolled of record in the office of the
registrar of the appellate division of the supreme court of South Africa ;
and such copies shall be conclusive evidence as to the provisions of every
such law, and in case of conflict between the two copies thus deposited
that signed by the governor-general shall prevail.
16 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
V. The Provinces.
A dministrators.
68. (1) In each province there shall be a chief executive officer ap-
pointed by the governor-general in council, who shall be styled the ad-
ministrator of the province, and in whose name all executive acts relating
to provincial affairs therein shall be done.
(2) In the appointment of the administrator of any province, the
governor-general in council shall, as far as practicable, give preference to
persons resident in such province.
(3) Such administrator shall hold office for a term of five years and
shall not be removed before the expiration thereof except by the governor-
general in council for cause assigned, which shall be communicated by
message to both houses of parliament within one week after the removal,
if parliament be then sitting, or, if parliament be not sitting, then within
one week after the commencement of the next ensuing session.
(4) The governor-general in council may from time to time appoint
a deputy administrator to execute the office and functions of the adminis-
trator duing his absence, illness, or other inability.
69. The salaries of the administrators shall be fixed and provided by
parliament, and shall not be reduced during their respective terms of
office.
Provincial councils.
70. (1) There shall be a provincial council in each province consist-
ing of the same number of members as are elected in the province for the
house of assembly: provided that, in any province whose representatives
in the house of assembly shall be less than twenty-five in number, the
provincial council shall consist of twenty-five members.
(2) Any person qualified to vote for the election of members of the
provincial council shall be qualified to be a member of such council.
71. (1) The members of the provincial council shall be elected by the
persons qualified to vote for the election of members of the house of
assembly in the province voting in the same electoral divisions as are
delimited for the election of members of the house of assembly : provided
that, in any province in which less than twenty-five members are elected
to the house of assembly, the delimitation of the electoral divisions, and
any necessary re-allocation of members or adjustment of electoral di-
visions, shall be effected by the same commission and on the same prin-
ciples as are prescribed in regard to the electoral divisions for the house
of assembly.
OFFICIAL DOCUMENTS 17
(2) Any alteration in the number of members of the provincial council
and any re-division of the province into electoral divisions, shall come
into operation at the next general election for such council held after the
completion of such re-division, or of any allocation consequent upon such
alteration, and not earlier.
(3) The elections shall take place at such times as the administrator
shall by proclamation direct, and the provisions of section thirty-seven
applicable to the election of members of the house of assembly shall
mutatis mutandis apply to such elections.
72. The provisions of sections fifty-three, fifty-four and fifty-five,
relative to members of the house of assembly, shall mutatis mutandis
apply to members of the provincial councils : provided that any member
of a provincial council who shall become a member of either house of
parliament shall thereupon cease to be a member of such provincial
council.
73. Each provincial council shall continue for three years from the
date of its first meeting, and shall not be subject to dissolution save by
effluxion of time.
74. The administrator of each province shall by proclamation fix such
times for holding the sessions of the provincial council as he may think
fit, and may from time to time prorogue such council : provided that there
shall be a session of every provincial council once at least in every year,
so that a period of twelve months shall not intervene between the last
sitting of the council in one session and its first sitting in the next session.
75. The provincial council shall elect from among its members a chair-
man, and may make rules for the conduct of its proceedings. Such rules
shall be transmitted by the administrator to the governor-general, and
shall have full force and effect unless and until the governor-general in
council shall express his disapproval thereof in writing addressed to the
administrator.
76. The members of the provincial council shall receive such allow-
ances as shall be determined by the governor-general in council.
77. There shall be freedom of speech in the provincial council, and no
member shall be liable to any action or proceeding in any court by reason
of his speech or vote in such council.
Executive committees.
78. (]) Each provincial council shall at its first meeting after any
general election elect from among its members, or otherwise, four per-
sons to form with the administrator, who shall be chairman, an executive
18 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
committee for the province. The members of the executive committee
other than the administrator shall hold office until the election of their
successors in the same manner.
(2) Such members shall receive such remuneration as the provincial
council, with the approval of the governor-general in council, shall
determine.
(3) A member of the provincial council shall not be disqualified from
sitting as a member by reason of his having been elected as a member of
the executive committee.
(4) Any casual vacancy arising in the executive committee shall be
filled by election by the provincial council if then in session, or, if the
council is not in session, by a person appointed by the executive committee
to hold office temporarily pending an election by the council.
79. The administrator and any other member of the executive com-
mittee of a province, not being a member of the provincial council, shall
have the right to take part in the proceedings of the council, but shall not
have the right to vote.
80. The executive committee shall on behalf of the provincial council
carry on the administration of provincial affairs. Until the first election
of members to serve on the executive committee, such administration shall
be carried on by the administrator. Whenever there are not sufficient
members of the executive committee to form a quorum according to the
rule of the committee, the administrator shall, as soon as practicable,
convene a meeting of the provincial council for the purpose of electing
members to fill the vacancies, and until such election the administrator
shall carry on the administration of provincial affairs.
81. Subject to the provisions of this act, all powers, authorities, and
functions which at the establishment of the Union are in any of the
colonies vested in or exercised by the governor or the governor in council,
or any minister of the colony, shall after such establishment be vested in
the executive committee of the province so far as such powers, authorities,
and functions relate to matters in respect of which the provincial council
is competent to make ordinances.
82. Questions arising in the executive committee shall be determined
by a majority of votes of the members present, and, in ease of an equality
of votes, the administrator shall have also a casting vote. Subject to the
approval of the governor-general in council, the executive committee may
make rules for the conduct of its proceedings.
83. Subject to the provisions of any law passed by parliament regulat-
OFFICIAL DOCUMENTS 19
ing the conditions of appointment, tenure of office, retirement and super-
annuation of public officers, the executive committee shall have power to
appoint such officers as may be necessary in addition to officers assigned
to the province by the governor-general in council under the provisions
of this act, to carry out the services entrusted to them and to make and
enforce regulations for the organization and discipline of such officers.
84. In regard to all matters in respect of which no powers are reserved
or delegated to the provincial council, the administrator shall act on be-
half of the governor-general in council when required to do so and in such
matters the administrator may act without reference to the other mem-
bers of the executive committee.
Powers of provincial councils.
85. Subject to the provisions of this act and the assent of the governor-
general in council as hereinafter provided, the provincial council may
make ordinances in relation to matters coming within the following
classes of subjects (that is to say) :
(i) Direct taxation within the province in order to raise a revenue
for provincial purposes:
(ii) The borrowing of money on the sole credit of the province
with the consent of the governor-general in council and in accord-
ance with regulations to be framed by parliament :
(iii) Education, other than higher education, for a period of five
years and thereafter until parliament otherwise provides:
(iv) Agriculture to the extent and subject to the conditions to
be defined by parliament :
(v) The establishment, maintenance and management of hos-
pitals and charitable institutions:
(vi) Municipal institutions, divisional councils, and other local
institutions of a similar nature :
(vii) Local works and undertakings within the province, other
than railways and harbors and other than such works as extend
beyond the borders of the province, and subject to the power of
parliament to declare any work a national work and to provide for
its construction by arrangement with the provincial council or
otherwise :
(viii) Koads, outspans, ponts, and bridges, other than bridges
connecting two provinces :
(ix) Markets and pounds:
20 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
(x) Fish and game preservation :
(xi) The imposition of punishment by fine, penalty, or imprison-
ment for enforcing any law or any ordinance of the province made
in relation to any matter coming within any of the classes of sub-
jects enumerated in this section :
(xii) Generally all matters which, in the opinion of the governor-
general in council, are of a merely local or private nature in the
province :
(xiii) All other subjects in respect of which parliament shall by
any law delegate the power of making ordinances to the provincial
council.
86. Any ordinance made by a provincial council shall have effect in
and for the province so long and as far only as it is not repugnant to any
act of parliament.
87. A provincial council may recommend to parliament the passing of
any law relating to any matter in respect of which such council is not
competent to make ordinances.
88. In regard to any matter which requires to be dealt with by means
of a private act of parliament, the provincial council of the province to
which the matter relates may, subject to such procedure as shall be laid
down by parliament, take evidence by means of a select committee or
otherwise for and against the passing of such law, and, upon receipt of a
report from such council, together with the evidence upon which it is
founded, parliament may pass such act without further evidence being
taken in support thereof.
89. A provincial revenue fund shall be formed in every province, into
which shall be paid all revenues raised by or accruing to the provincial
council and all moneys paid over by the governor-general in council to
the provincial council. Such fund shall be appropriated by the pro-
vincial council by ordinance for the purposes of the provincial administra-
tion generally, or, in the ease of moneys paid over by the governor-general
in council for particular purposes, then for such purposes, but no such
ordinance shall be passed by the provincial council unless the administra-
tor shall have first recommended to the council to make provision for
the specific service for which the appropriation is to be made. No
money shall be issued from the provincial revenue fund except in ac-
cordance with such appropriation and under warrant signed by the ad-
ministrator: provided that, until the expiration of one month after the
first meeting of the provincial council, the administrator may expend
such moneys as may be necessary for the services of the province.
OFFICIAL DOCUMENTS 21
90. When a proposed ordinance has been passed by a provincial council
it shall be presented by the administrator to the governor-general in
council for his assent. The governor-general in council shall declare
within one month from the presentation to him of the proposed ordinance
that he assents thereto, or that he withholds assent, or that he reserves the
proposed ordinance for further consideration. A proposed ordinance so
reserved shall not have any force unless and until, within one year from
the day on which it was presented to the governor-general in council, he
makes known by proclamation that it has received his assent.
91. An ordinance assented to by the governor-general in council and
promulgated by the administrator shall, subject to the provisions of this
act, have the force of law within the province. The administrator shall
cause two fair copies of every such ordinance, one being in the English
and the other in the Dutch language (one of which copies shall be signed
by the governor-general), to be enrolled of record in the office of the
registrar of the appellate division of the supreme court of South Africa ;
and such copies shall be conclusive evidence as to the provisions of such
ordinance, and, in case of conflict between the two copies thus deposited,
that signed by the governor-general shall prevail.
Miscellaneous.
92. (1) In each province there shall be an auditor of accounts to be
appointed by the governor-general in council.
(2) No such auditor shall be removed from office except by the gover-
nor-general in council for cause assigned, which shall be communicated
by message to both houses of parliament within one week after the re-
moval, if parliament be then sitting, and, if parliament be not sitting,
then within one week after the commencement of the next ensuing
session.
(3) Each such auditor shall receive out of the consolidated revenue
fund such salary as the governor-general in council, with the approval of
parliament, shall determine.
(4) Each such auditor shall examine and audit the accounts of the
province to which he is assigned subject to such regulations and orders as
may be framed by the governor-general in council and approved by parlia-
ment, and no warrant signed by the administrator authorizing the issuing
of money shall have effect unless countersigned by such auditor.
93. Notwithstanding anything in this act contained, all powers, au-
thorities, and functions lawfully exercised at the establishment of the
22 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
Union by divisional or municipal councils, or any other duly constituted
local authority, shall be and remain in force until varied or withdrawn by
parliament or by a provincial council having power in that behalf.
94. The seats of provincial government shall be:
For the Cape of Good Hope Cape Town.
For Natal Pietermaritzburg.
For the Transvaal Pretoria.
For the Orange Free State Bloemf ontein.
VI. The Supreme Court of South Africa.
95. There shall be a supreme court of South Africa consisting of a
chief justice of South Africa, the ordinary judges of appeal, and the other
judges of the several divisions of the supreme court of South Africa in
the provinces.
96. There shall be an appellate division of the supreme court of South
Africa, consisting of the chief justice of South Africa, two ordinary
judges of appeal, and two additional judges of appeal. Such additional
judges of appeal shall be assigned by the governor-general in council to
the appellate division from any of the provincial or local divisions of the
supreme court of South Africa, but shall continue to perform their duties
as judges of their respective divisions when their attendance is not re-
quired in the appellate division.
97. The governor-general in council may, during the absence, illness,
or other incapacity of the chief justice of South Africa, or of any ordinary
or additional judge of appeal, appoint any other judge of the supreme
court of South Africa to act temporarily as such chief justice, ordinary
judge of appeal, or additional judge of appeal, as the case may be.
98. (1) The several supreme courts of the Cape of Good Hope, Natal,
and the Transvaal, and the high court of the Orange Kiver Colony shall,
on the establishment of the Union, become provincial divisions of the
supreme court of South Africa within their respective provinces, and
shall each be presided over by a judge-president.
(2) The court of the eastern districts of the Cape of Good Hope, the
high court of Griqualand, the high court of Witwatersrand, and the
several circuit courts, shall become local divisions of the supreme court of
South Africa within the respective areas of their jurisdiction as existing
at the establishment of the Union.
(3) The said provincial and local divisions, referred to in this act as
superior courts, shall, in addition to any original jurisdiction exercised
OFFICIAL DOCUMENTS 23
by the corresponding courts of the colonies at the establishment of the
Union, have jurisdiction in all matters —
(a) in which the government of the Union or a person suing or
being sued on behalf of such government is a party :
(b) in which the validity of any provincial ordinance shall come
into question.
(4) Unless and until parliament shall otherwise provide, the said
superior courts shall mutatis mutandis have the same jurisdiction in
matters affecting the validity of elections of members of the house of
assembly and provincial councils as the corresponding courts of the
colonies have at the establishment of the Union in regard to parlia-
mentary elections in such colonies respectively.
99. All judges of the supreme courts of the colonies, including the high
court of the Orange Eiver Colony, holding office at the establishment of
the Union shall on such establishment become judges of the supreme
court of South Africa, assigned to the divisions of the supreme court in
the respective provinces, and shall retain all such rights in regard to
salaries and pensions as they may possess at the establishment of the
Union. The chief justices of the colonies holding office at the establish-
ment of the Union shall on such establishment become the judges-
president of the divisions of the supreme court in the respective prov-
inces, but shall so long as they hold that office retain the title of chief
justice of their respective provinces.
100. The chief justice of South Africa, the ordinary judges of appeal,
and all other judges of the supreme court of South Africa to be appointed
after the establishment of the Union shall be appointed by the governor-
general in council, and shall receive such remuneration as parliament
shall prescribe, and their remuneration shall not be diminished during
their continuance in office.
101. The chief justice of South Africa and other judges of the supreme
court of South Africa shall not be removed from office except by the
governor-general in council on an address from both houses of parliament
in the same session praying for such removal on the ground of mis-
behavior or incapacity.
102. Upon any vacancy occurring in any division of the supreme court
of South Africa, other than the appellate division, the governor-general
in council may, in case he shall consider that the number of judges of
such court may with advantage to the public interest be reduced, postpone
filling the vacancy until parliament shall have determined whether such
reduction shall take place.
24 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
103. In every civil ease in which, according to the law in force at the
establishment of the Union, an appeal might have been made to the
supreme court of any of the colonies from a superior court in any of
the colonies, or from the high court of Southern Rhodesia, the appeal
should be made only to the appellate division, except in cases of orders
or judgments given by a single judge, upon applications by way of
motion or petition or on summons for provisional sentence or judg-
ments as to costs only, which by law are left to the discretion of the
court. The appeal from any such orders or judgments, as well as any
appeal in criminal cases from any such superior court, or the special
reference by any such court of any point of law in a criminal case, shall
be made to the provisional division corresponding to the court which
before the establishment of the Union would have had jurisdiction in the
matter. There shall be no further appeal against any judgment given
on appeal by such provincial division except to the appellate division, and
then only if the appellate division shall have given special leave to
appeal.
104. In every case, civil or criminal, in which at the establishment of
the Union an appeal might have been made from the supreme court of
any of the colonies or from the high court of the Orange River Colony to
the king in council, the appeal shall be made only to the appellant di-
vision: provided that the right of appeal in any civil suit shall not be
limited by reason only of the value of the matter in dispute or the
amount claimed or awarded in such suit.
105. In every case, civil or criminal, in which at the establishment of
the Union an appeal might have been made from a court of resident
magistrate or other inferior court to a superior court in any of the
colonies, the appeal shall be made to the corresponding division of the
supreme court of South Africa; but there shall be no further appeal
against any judgment given on appeal by such division except to the
appellate division, and then only if the appellate division shall have given
special leave to appeal.
106. There shall be no appeal from the supreme court of South Africa
or from any division thereof to the king in council, but nothing herein
contained shall be construed to impair any right which the king in
council may be pleased to exercise to grant special leave to appeal from
the appellate division to the king in council. Parliament may make laws
limiting the matters in respect of which such special leave may be asked,
but bills containing any such limitation shall be reserved by the governor-
OFFICIAL DOCUMENTS 25
general for the signification of his majesty's pleasure: provided that
nothing in this section shall affect any right of appeal to his majesty in
council from any judgment given by the appellate division of the supreme
court under or in virtue of the Colonial Courts of Admiralty Act, 1890.
107. The chief justice of South Africa and the ordinary judges of
appeal may, subject to the approval of the governor-general in council,
make rules for the conduct of the proceedings of the appellate division
and prescribing the time and manner of making appeals thereto. Until
such rules shall have been promulgated, the rules in force in the supreme
court of the Cape of Good Hope at the establishment of the Union shall
mutatis mutandis apply.
108. The chief justice and other judges of the supreme court of South
Africa may, subject to the approval of the governor-general in council,
frame rules for the conduct of the proceedings of the several provincial
and local divisions. Until such rules shall have been promulgated, the
rules in force at the establishment of the Union in the respective courts
which become divisions of the supreme court of South Africa shall con-
tinue to apply therein.
109. The appellate division shall sit in Bloemfontein, but may from
time to time for the convenience of suitors hold its sittings at other
places within the Union.
110. On the hearing of appeals from a court consisting of two or more
judges, five judges of the appellate division shall form a quorum, but, on
the hearing of appeals from a single judge, three judges of the appellate
division shall form a quorum. No judge shall take part in the hearing
of any appeal against the judgment given in a case heard before him.
111. The process of the appellate division shall run throughout the
Union, and all its judgments or orders shall have full force and effect in
every province, and shall be executed in like manner as if they were
original judgments or orders of the provincial division of the supreme
court of South Africa in such province.
112. The registrar of every provincial division of the supreme court
of South Africa, if thereto requested by any party in whose favor any
judgment or order has been given or made by any other division, shall,
upon the deposit with him of an authenticated copy of such judgment or
order and on proof that the same remains unsatisfied, issue a writ or
other process for the execution of such judgment or order, and thereupon
such writ or other process shall be executed in like manner as if it had
been originally issued from the division of which he is registrar.
26 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
113. Any provincial or local division of the supreme court of South
Africa to which it may be made to appear that any civil suit pending
therein may be more conveniently or fitly heard or determined in
another division may order the same to be removed to such other division,
and thereupon such last-mentioned division may proceed with such suit
in like manner as if it had been originally commenced therein.
114. The governor-general in council may appoint a registrar of the
appellate division and such other officers thereof as shall be required for
the proper dispatch of the business thereof.
115. (1) The laws regulating the admission of advocates and at-
torneys to practise before any superior court of any of the colonies shall
mutatis mutandis apply to the admission of advocates and attorneys to
practise in the corresponding division of the supreme court of South
Africa.
(2) All advocates and attorneys entitled at the establishment of the
Union to practise in any superior court of any of the colonies shall be
entitled to practise as such in the corresponding division of the supreme
court of South Africa.
(3) All advocates and attorneys entitled to practise before any pro-
vincial division of the supreme court of South Africa shall be entitled
to practise before the appellate division.
116. All suits, civil or criminal, pending in any superior court of any
of the colonies at the establishment of the Union shall stand removed to
the corresponding division of the supreme court of South Africa, which
shall have jurisdiction to hear and determine the same, and all judg-
ments and orders of any superior court of any of the colonies given or
made before the establishment of the Union shall have the same force
and effect as if they had been given or made by the corresponding
division of the supreme court of South Africa. All appeals to the king
in council which shall be pending at the establishment of the Union shall
be proceeded with as if this act had not been passed.
VII. Finance and Railways.
117. All revenues, from whatever source arising, over which the several
colonies have at the establishment of the Union power of appropriation,
shall vest in the governor-general in council. There shall be formed a
railway and harbor fund, into which shall be paid all revenues raised of
received by the governor-general in council from the administration of
the railways, ports, and harbors, and such fund shall be appropriated by
OFFICIAL DOCUMENTS 27
parliament to the purposes of the railways, ports, and harbors in the
manner prescribed by this act. There shall also be formed a consolidated
revenue fund, into which shall be paid all other revenues raised or re-
ceived by the governor-general in council, and such fund shall be ap-
propriated by parliament for the purposes of the Union in the manner
prescribed by this act, and subject to the charges imposed thereby.
118. The governor-general in council shall, as soon as may be after the
establishment of the Union, appoint a commission, consisting of one rep-
resentative from each province, and presided over by an officer from the
imperial service, to institute an inquiry into the financial relations which
should exist between the Union and the provinces. Pending the com-
pletion of that inquiry and until parliament otherwise provides, there
shall be paid annually out of the consolidated revenue fund to the
administrator of each province:
(a) an amount equal to the sum provided in the estimates for
education, other than higher education, in respect of the financial
year, 1908-9, as voted by the legislature of the corresponding colony
during the year nineteen hundred and eight;
(b) such further sums as the governor-general in council may
consider necessary for the due performance of the services and
duties assigned to the provinces respectively.
Until such inquiry shall be completed and parliament shall have made
other provision, the executive committees in the several provinces shall
annually submit estimates of their expenditure for the approval of the
governor-general in council, and no expenditure shall be incurred by any
executive committee which is not provided for in such approved estitnates.
119. The annual interest of the public debts of the colonies and any
sinking funds constituted by law at the establishment of the Union shall
form a first charge on the consolidated revenue fund.
120. No money shall be withdrawn from the consolidated revenue
fund or the railway and harbor fund except under appropriation made
by law. But, until the expiration of two months after the first meeting
of parliament, the governor-general in council may draw therefrom and
expend such moneys as may be necessary for the public service, and for
railway and harbor administration respectively.
121. All stocks, cash, bankers' balances, and securities for money be-
longing to each of the colonies at the establishment of the Union shall
be the property of the Union: provided that the balances of any funds
raised at the establishment of the Union by law for any special purposes
28 THE AMERICAN JOURNAL OP INTERNATIONAL LAW
in any of the colonies shall be deemed to have been appropriated by
parliament for the special purposes for which they have been provided.
122. Crown lands, public works, and all property throughout the
Union, movable or immovable, and all rights of whatever description
belonging to the several colonies at the establishment of the Union, shall
vest in the governor-general in council subject to any debt or liability
specifically charged thereon.
123. All rights in and to mines and minerals, and all rights in con-
nection with the searching for, working for, or disposing of, minerals or
precious stones, which at the establishment of the Union are vested in the
government of any of the colonies, shall on such establishment vest in the
governor-general in council.
124. The Union shall assume all debts and liabilities of the colonies
existing at its establishment, subject, notwithstanding any other pro-
vision contained in this act, to the conditions imposed by any law under
which such debts or liabilities were raised or incurred, and without
prejudice to any rights of security or priority in respect of the payment
of principal, interest, sinking fund, and other charges conferred on the
creditors of any of the colonies, and may, subject to such conditions and
rights, convert, renew, or consolidate such debts.
125. All ports, harbors, and railways belonging to the several colonies
at the establishment of the Union shall from the date thereof vest in the
governor-general in council. No railway for the conveyance of public
traffic, and no port, harbor, or similar work, shall be constructed without
the sanction of parliament.
126. Subject to the authority of the governor-general in council, the
control and management of the railways, ports, and harbors of the Union
shall be exercised through a board consisting of not more than three com-
missioners, who shall be appointed by the governor-general in council,
and a minister of state, who shall be chairman. Bach commissioner shall
hold office for a period of five years, but may be reappointed. He shall
not be removed before the expiration of his period of appointment, except
by the governor-general in council for cause assigned, which shall be
communicated by message to both houses of parliament within one week
after the removal, if parliament be then sitting, or, if parliament be not
sitting, then within one week after the commencement of the next en-
suing session. The salaries of the commissioners shall be fixed by par-
liament and shall not be reduced during their respective terms of office.
127. The railways, ports, and harbors of the Union shall be admin-
OFFICIAL DOCUMENTS 29
istered on business principles, due regard being had to agricultural and
industrial development within the Union and promotion, by means of
cheap transport, of the settlement of an agricultural and industrial
population in the inland portions of all provinces of the Union. So far
as may be, the total earnings shall be not more than are sufficient to meet
the necessary outlays for working, maintenance, betterment, depreciation,
and the payment of interest due on capital not being capital contributed
out of railway or harbor revenue and not including any sums payable
out of the consolidated revenue fund in accordance with the provisions of
sections one hundred and thirty and one hundred and thirty-one. The
amount of interest due on such capital invested shall be paid over from
the railway and harbor fund into the consolidated revenue fund. The
governor-general in council shall give effect to the provisions of this
section as soon as and at such time as the necessary administrative and
financial arrangements can be made, but in any case shall give full effect
to them before the expiration of four years from the establishment of the
Union. During such period, if the revenues accruing to the consolidated
revenue fund are insufficient to provide for the general service of the
Union, and if the earnings accruing to the railway and harbor fund are
in excess of the outlays specified herein, parliament may by law appro-
priate such excess or any part thereof towards the general expenditure
of the Union, and all sums so appropriated shall be paid over to the
consolidated revenue fund.
128. Notwithstanding' anything to the contrary in the last preceding
section, the board may establish a fund out of railway and harbor revenue
to be used for maintaining, as far as may be, uniformity of rates notwith-
standing fluctuations in traffic.
139. All balances standing to the credit of any fund established in any
of the colonies for railway or harbor purposes at the establishment of the
Union shall be under the sole control and management of the board, and
shall be deemed to have been appropriated by parliament for the re-
spective purposes for which they have been provided.
130. Every proposal for the construction of any port or harbor works
or of any line of railway, before being submitted to parliament, shall be
considered by the board, which shall report thereon, and shall advise
whether the proposed works or line of railway should or should not be
constructed. If any such works or line shall be constructed contrary to
the advice of the board, and if the board is of opinion that the revenue
derived from the operation of such works or line will be insufficient to
30 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
meet the costs of working and maintenance, and of interest on the capital
invested therein, it shall frame an estimate of the annual loss which, in
its opinion, will result from such operation. Such estimate shall be
examined by the controller and auditor-general, and when approved by
him the amount thereof shall be paid over annually from the consolidated
revenue fund to the railway and harbor fund: provided that, if in any
year the actual loss incurred, as calculated by the board and certified by
the controller and auditor-general, is less than the estimate framed by the
board, the amount paid over in respect of that year shall be reduced
accordingly so as not to exceed the actual loss incurred. In calculating
the loss arising from the operation of any such work or line, the board
shall have regard to the value of any contributions of traffic to other
parts of the system which may be due to the operation of such work or
line.
131. If the board shall be required by the governor-general in council
or under any act of parliament or resolution of both houses of parliament
to provide any services or facilities either gratuitously or at a rate of
charge which is insufficient to meet the costs involved in the provision of
such services or facilities, the board shall at the end of each financial
year present to parliament an account approved by the controller and
auditor-general, showing, as nearly as can be ascertained, the amount of
the loss incurred by reason of the provision of such services and facilities,
and such amount shall be paid out of the consolidated revenue fund to
the railway and harbor fund.
132. The governor-general in council shall appoint a controller and
auditor-general who shall hold office during good behavior : provided that
he shall be removed by the governor-general in council on an address
praying for such removal presented to the governor-general by both
houses of parliament: provided further that when parliament is not in
session the governor-general in council may suspend such officer on the
ground of incompetence or misbehavior; and, when and so often as such
suspension shall take place, a full statement of the circumstances shall
be laid before both houses of parliament within fourteen days after the
commencement of its next session; and, if an address shall at any time
during the session of parliament be presented to the governor-general
by both houses praying for the restoration to office of such officer, he shall
be restored accordingly ; and if no such address be presented the governor-
general shall confirm such suspension and shall declare the office of con-
troller and auditor-general to be, and it shall thereupon become, vacant.
OFFICIAL DOCUMENTS 31
Until parliament shall otherwise provide, the controller and auditor-
general shall exercise such powers and functions and undertake such
duties as may be assigned to him by the governor-general in council by
regulations framed in that behalf.
133. In order to compensate Pietermaritzburg and Bloemfontein for
any loss sustained by them in the form of diminution of prospejity or
decreased ratable value by reason of their ceasing to be the seats of
government of their respective colonies, there shall be paid from the con-
solidated revenue fund for a period not exceeding twenty-five years to
the municipal councils of such towns a grant of two per centum per
annum on their municipal debts, as existing on the thirty-first day of
January nineteen hundred and nine, and as ascertained by the controller
and auditor-general. The commission appointed under section one hun-
dred and eighteen shall, after due inquiry, report to the governor-general
in council what compensation should be paid to the municipal councils
of Cape Town and Pretoria for the losses, if any, similarly sustained by
them. Such compensation shall be paid out of the consolidated revenue
fund for a period not exceeding twenty-five years and shall not exceed
one per centum per annum on the respective municipal debts of such
towns as existing on the thirty-first day of January nineteen hundred
and nine, and as ascertained by the controller and auditor-general.
For the purposes of this section Cape Town shall be deemed to include
the municipalities of Cape Town, Green Point, and Sea Point, Wood-
stock, Mowbray, and Eondebosch, Claremont, and Wynberg, and any
grant made to Cape Town shall be payable to the councils of such mu-
nicipalities in proportion to their respective debts. One-half of any such
grants shall be applied to the redemption of the municipal debts of such
towns respectively. At any time after the tenth annual grant has been
paid to any of such towns the governor-general in council, with the
approval of parliament, may after due inquiry withdraw or reduce the
grant to such town.
VIII. General.
134. The election of senators and of members of the executive com-
mittees of the provincial councils as provided in this act shall, whenever
such election is contested, be according to the principle of proportional
representation, each voter having one transferable vote. The governor-
general in council, or, in the case of the first election of the senate, the
governor in council of each of the colonies, shall frame regulations pre-
32 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
scribing the method of voting and of transferring and counting votes
and the duties of returning officers in connection therewith, and such
regulations or any amendments thereof after being duly promulgated
shall have full force and effect unless and until parliament shall other-
wise provide.
135. Subject to the provisions of this act, all laws in force in the
several colonies at the establishment of the Union shall continue in force
in the respective provinces until repealed or amended by parliament, or
by the provincial councils in matters in respect of which the power to
make ordinances is reserved or delegated to them. All legal commissions
in the several colonies at the establishment of the Union shall continue
as if the Union had not been established.
136. There shall be free trade throughout the Union, but until parlia-
ment otherwise provides the duties of customs and of excise leviable under
the laws existing in any of the colonies at the establishment of the Union
shall remain in force.
137. Both the English and Dutch languages shall be official languages
of the Union, and shall be treated on a footing of equality, and possess
and enjoy equal freedom, rights, and privileges; all records, journals,
and proceedings of parliament shall be kept in both languages, and all
bills, acts, and notices of general public importance or interest issued
by the government of the Union shall be in both languages.
138. All persons who have been naturalized in any of the colonies shall
be deemed to be naturalized throughout the Union.
139. The administration of justice throughout the Union shall be under
the control of a minister of state, in whom shall be vested all powers,
authorities, and functions which shall at the establishment of the Union
be vested in the attorneys-general of the colonies, save and except all
powers, authorities, and functions relating to the prosecution of crimes
and offences, which shall in each province be vested in an officer to be
appointed by the governor-general in council, and styled the attorney-
general of the province, who shall also discharge such other duties as may
be assigned to him by the governor-general in council: provided that in
the province of the Cape of Good Hope the solicitor-general for the
eastern districts and the crown prosecutor for Griqualand West shall re-
spectively continue to exercise the powers and duties by law vested in
them at the time of the establishment of the Union.
140. Subject to the provisions of the next succeeding section, all
officers of the public service of the colonies shall at the establishment of
the Union become officers of the Union.
OFFICIAL DOCUMENTS 33
141. (1) As soon as possible after the establishment of the Union, the
governor-general in council shall appoint a public service commission to
make recommendations for such reorganization and readjustment of the
departments of the public service as may be necessary. The commission
shall also make recommendations in regard to the assignment of officers
to the several provinces.
(2) The governor -general in council may after such commission has
reported assign from time to time to each province such officers as may
be necessary for the proper discharge of the services reserved or delegated
to it, and such officers on being so assigned shall become officers of the
province. Pending the assignment of such officers, the governor-general
in council may place at the disposal of the provinces the services of such
officers of the Union as may be necessary.
(3) The provisions of this section shall not apply to any service or
department under the control of the railway and harbor board or to any
person holding office under the board.
142. After the establishment of the Union the governor-general in
council shall appoint a permanent public service commission with such
powers and duties relating to the appointment, discipline, retirement, and
superannuation of public officers as parliament shall determine.
143. Any officer of the public service of any of the colonies at the
establishment of the Union who is not retained in the service of the
Union or assigned to that of a province shall be entitled to receive such
pension, gratuity, or other compensation as he would have received in
like circumstances if the Union had not been established.
144. Any officer of the public service of any of the colonies at the
establishment of the Union who is retained in the service of the Union or
assigned to that of a province shall retain all his existing and accruing
rights, and shall be entitled to retire from the service at the time at which
he would have been entitled by law to retire, and on the pension or
retiring allowance to which he would have been entitled by law in like
circumstances if the Union had not been established.
145. The services of officers in the public service of any of the colonies
at the establishment of the Union shall not be dispensed with by reason
of their want of knowledge of either the English or Dutch language.
146. Any permanent officer of the legislature of any of the colonies
who is not retained in the service of the Union or assigned to that of any
province, and for whom no provision shall have been made by such
legislature, shall be entitled to such pension, gratuity, or compensation
as parliament may determine.
34 THE AMERICAN JOURNAL OE INTERNATIONAL LAW
147. The control and administration of native affairs and of matters
specially or differentially affecting Asiatics throughout the Union shall
vest in the governor-general in council, who shall exercise all special
powers in regard to native administration hitherto vested in the governors
of the colonies or exercised by them as supreme chiefs, and any lands vested
in the governor or governor and executive council of any colony for the
purpose of reserves for native locations shall vest in the governor-general
in council, who shall exercise all special powers in relation to such re-
serves as may hitherto have been exercisable by any such governor or
governor and executive council, and no land set aside for the occupation
of natives which can not at the establishment of the Union be alienated
except by an act of the colonial legislature shall be alienated or in any
way diverted from the purposes for which they are set apart except under
the authority of an act of parliament.
148. (1) All rights and obligations under any conventions or agree-
ments which are binding on any of the colonies shall devolve upon the
Union at its establishment.
(2) The provisions of the railway agreement between the governments
of the Transvaal, the Cape of Good Hope, and Natal, dated the second
of February, nineteen hundred and nine, shall, as far as practicable, be
given effect to by the government of the Union.
IX. New Provinces and Territories.
149. Parliament may alter the boundaries of any province, divide a
province into two or more provinces, or form a new province out of
provinces within the Union, on the petition of the provincial council
of every province whose boundaries are affected thereby.
150. The king, with the advice of the privy council, may on addresses
from the houses of parliament of the Union admit into the Union the
territories administered by the British South Africa Company on such
terms and conditions as to representation and otherwise in each case as
are expressed in the addresses and approved by the king, and the pro-
visions of any order in council in that behalf shall have effect as if they
had been enacted by the parliament of the United Kingdom of Great
Britain and Ireland.
151. The king, with the advice of the privy council, may, on addresses
from the houses of parliament of the Union, transfer to the Union the
government of any territories, other than the territories administered by
the British South Africa Company, belonging to or under the pro-
OFFICIAL DOCUMENTS 35
tection of his majesty, and inhabited wholly or in part by natives, and
upon such transfer the governor-general in council may undertake the
government of such territory upon the terms and conditions embodied
in the schedule to this act.
X. Amendment of Act.
152. Parliament may by law repeal or alter any of the provisions of
this act : provided that no provision thereof, for the operation of which a
definite period of time is prescribed, shall during such period be repealed
or altered : and provided further that no repeal or alteration of the pro-
visions contained in this section, or in sections thirty-three and thirty-
four (until the number of members of the house of assembly has reached
the limit therein prescribed, or until a period of ten vears has elapsed
after the establishment of the Union, whichever is the longer period), or
in sections thirty-five and one hundred and thirty-seven, shall be valid
unless the bill embodying such repeal or alteration shall be passed by
both houses of parliament sitting together, and at the third reading be
agreed to by not less than two-thirds of the total number of members of
both houses. A bill so passed at such joint sitting shall be taken to have
been duly passed by both houses of parliament.
Schedule.
1. After the transfer of the government of any territory belonging to
or under the protection of his majesty the governor-general in council
shall be the legislative authority, and may by proclamation make laws for
the peace, order, and good government of such territory : provided that
all such laws shall be laid before both houses of parliament within seven
days after the issue of the proclamation or, if parliament be not then
sitting, within seven days after the beginning of the next session, and
shall be effectual unless and until both houses of parliament shall by
resolutions passed in the same session request the governor-general in
council to repeal the same, in which case they shall be repealed by
proclamation.
2. The prime minister shall be charged with the administration of any
territory thus transferred, and he shall be advised in the general conduct
of such administration by a commission consisting of not fewer than
three members with a secretary, to be appointed by the governor-general
in council, who shall take the instructions of the prime minister in con-
ducting all correspondence relating to the territories, and shall also
36 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
under the like control have custody of all official papers relating to the
territories.
3. The members of the commission shall be appointed by the governor-
general in council, and shall be entitled to hold office for a period of ten
years, but such period may be extended to successive further terms of five
years. They shall each be entitled to a fixed annual salary, which shall
not be reduced during the continuance of their term of office, and they
shall not be removed from office except upon addresses from both houses
of parliament passed in the same session praying for such removal.
They shall not be qualified to become, or to be, members of either house
of parliament. One of the members of the commission shall be ap-
pointed by the governor-general in council as vice-chairman thereof.
In case of the absence, illness, or other incapacity of any member of the
commission, the governor-general in council may appoint some other fit
and proper person to act during such absence, illness, or other incapacity.
4. It shall be the duty of the members of the commission to advise the
prime minister upon all matters relating to the general conduct of the
administration of, or the legislation for, the said territories. The prime
minister, or another minister of state nominated by the prime minister
to be his deputy for a fixed period, or, failing such nomination, the vice-
chairman, shall preside at all meetings of the commission, and in case of
an equality of votes shall have a casting vote. Two members of the com-
mission shall form a quorum. In case the commission shall consist of
four or more members three of them shall form a quorum.
5. Any member of the commission who dissents from the decision of a
majority shall be entitled to have the reasons for his dissent recorded in
the minutes of the commission.
6. The members of the commission shall have access to all official
papers concerning the territories, and they may deliberate on any matter
relating thereto and tender their advice thereon to the prime minister.
7. Before coming to a decision on any matter relating either to the
administration, other than routine, of the territories or to legislation
therefor, the prime minister shall cause the papers relating to such matter
to be deposited with the secretary to the commission, and shall convene
a meeting of the commission for the purpose of obtaining its opinion on
such matter.
8. Where it appears to the prime minister that the despatch of any
communication or the making of any order is urgently required, the
communication may be sent or order made, although it has not been sub-
OFFICIAL DOCUMENTS 37
mitted to a meeting of the commission or deposited for the perusal of
the members thereof. In any such case the prime minister shall record
the reasons for sending the communication or making the order and give
notice thereof to every member.
9. If the prime minister does not accept a recommendation of the com-
mission or purposes to take some action contrary to their advice, he shall
state his views to the commission, who shall be at liberty to place on
record the reasons in support of their recommendation or advice. This
record shall be laid by the prime minister before the governor-general in
council, whose decision in the matter shall be final.
10. When the recommendations of the commission have not been
accepted by the governor-general in council, or action not in accordance
with their advice has been taken by the governor-general in council, the
prime minister, if thereto requested by the commission, shall lay the
record of their dissent from the decision or action taken and of the reasons
therefor before both houses of parliament, unless in any case the governor-
general in council shall transmit to the commission a minute recording
his opinion that the publication of such record and reasons would be
gravely detrimental to the public interest.
11. The governor-general in council shall appoint a resident commis-
sioner for each territory, who shall, in addition to such other duties as
shall be imposed on him, prepare the annual estimates of revenue and
expenditure for such territory, and forward the same to the secretary
to the commission for the consideration of the commission and of the
prime minister. A proclamation shall be issued by the governor-general
in council, giving to the provisions for revenue and expenditure made in
the estimate as finally approved by the governor-general in council the
force of law.
12. There shall be paid into the treasury of the Union all duties of
customs levied on dutiable articles imported into and consumed in the
territories, and there shall be paid out of the treasury annually towards
the cost of administration of each territory a sum in respect of such
duties which shall bear to the total customs revenue of the Union in
respect of each financial year the same proportion as the average amount
of the customs revenue of such territory for the three completed financial
years last preceding the taking effect of this act bore to the average
amount of the whole customs revenue for all the colonies and territories
included in the Union received during the same period.
13. If the revenue of any territory for any financial year shall be
38 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
insufficient to meet the expenditure thereof, any amount required to
make good the deficiency may, with the approval of the governor-general
in council, and on such terms and conditions and in such manner as
with the like approval may be directed or prescribed, be advanced from
the funds of any other territory. In default of any such arrangement,
the amount required to make good any such deficiency shall be advanced
by the government of the Union. In case there shall be a surplus for
any territory, such surplus shall in the first instance be devoted to the
repayment of any sums previously advanced by any other territory or by
the Union government to make good any deficiency in the revenue of
such territory.
14. It shall not be lawful to alienate any land in Basutoland or any
land forming part of the native reserves in the Bechuanaland Protec-
torate and Swaziland from the native tribes inhabiting those territories.
15. The sale of liquor to natives shall be prohibited in the territories
and no provision giving facilities for introducing, obtaining, or possessing
such liquor in any part of the territories less stringent than those existing
at the time of transfer shall be allowed.
16. The custom, where it exists, of holding pitsos or other recognized
forms of native assembly shall be maintained in the territories.
17. No differential duties or imposts on the produce of the territories
shall be levied. The laws of the Union relating to customs and excise
shall be made to apply to the territories.
18. There shall be free intercourse for the inhabitants of the territories
with the rest of South Africa subject to the laws, including the pass
laws, of the Union.
19. Subject to the provisions of this schedule, all revenues derived
from any territory shall be expended for and on behalf of such territory:
provided that the governor-general in council may make special provision
for the appropriation of a portion of such revenue as a contribution
towards the cost of defence and other services performed by the Union
for the benefit of the whole of South Africa, so, however, that that con-
tribution shall not bear a higher proportion to the total cost of such
services than that which the amount payable under paragraph 12 of this
schedule from the treasury of the Union towards the cost of the ad-
ministration of the territory bears to the total customs revenue of the
Union on the average of the three years immediately preceding the year
for which the contribution is made.
20. The king may disallow any law made by the governor-general in
OFFICIAL DOCUMENTS 39
council by proclamation for any territory within one year from the date
of the proclamation, and such disallowance on being made known by the
governor-general by proclamation shall annul the law from the day
when the disallowance is so made known.
21. The members of the commission shall be entitled to such pensions
or superannuation allowances as the governor-general in council shall by
proclamation provide, and the salaries and pensions of such members and
all other expenses of the commission shall be borne by the territories in
the proportion of their respective revenues.
22. The rights as existing at the date of transfer of officers of the
public service employed in any territory shall remain in force.
23. "Where any appeal may by law be made to the king in council from
any court of the territories, such appeal shall, subject to the provisions of
this act, be made to the appellate division of the supreme court of South
Africa.
24. The commission shall prepare an annual report on the territories
which shall, when approved by the governor-general in council, be laid
before both houses of parliament.
25. All bills to amend or alter the provisions of this schedule shall be
reserved for the signification of his majesty's pleasure.
THE BRITISH NORTH AMERICA ACT. 1
[March 29, 1867.]
An Act for the Union of Canada, Nova Scotia and New Brunswick, and the
Government thereof; and for purposes connected therewith.
Whereas the provinces of Canada, Nova Scotia and New Brunswick
have expressed their desire to be federally united into one Dominion
under the crown of the United Kingdom of Great Britain and Ireland,
with a constitution similar in principle to that of the United Kingdom :
And whereas such a union would conduce to the welfare of the prov-
inces and promote the interests of the British empire :
And whereas on the establishment of the union by authority of parlia-
ment it is expedient, not only that the constitution of the legislative
i This and the following acts, relating to the constitutions of Canada and
Australia, are reprinted from Dodd's Modern Constitutions, University of Chi-
cago Press: 1909, vol. I, pp. 33-68 and 185-225. — J. B. s.
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